PA Republicans challenge fracking moratorium

By OWEN WALSH
Posted 1/20/21

DELAWARE RIVER — With a similar federal case already in progress, Republican lawmakers from Pennsylvania have filed a suit against the Delaware River Basin Commission (DRBC), challenging its …

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PA Republicans challenge fracking moratorium

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DELAWARE RIVER — With a similar federal case already in progress, Republican lawmakers from Pennsylvania have filed a suit against the Delaware River Basin Commission (DRBC), challenging its authority to prohibit fracking.

The plaintiffs, which include Wayne County’s Sen. Lisa Baker and Damascus Township, are arguing that the DRBC’s temporary fracking ban, in place since 2010, violates the interstate commission’s own compact—the legal agreement between Pennsylvania, New York, New Jersey, Delaware and the federal government. The plaintiffs are alternately seeking a declaration that, by imposing the fracking moratorium, the DRBC has unconstitutionally taken land and funding from the commonwealth and its residents.

Aside from Baker and Damascus Township, other plaintiffs include PA Republican Sen. Gene Yaw of Lycoming County and the PA State Senate Republican Caucus.

This isn’t the only challenge that the DRBC is facing over fracking. A Wayne County landowner, Wayne Land & Mineral Group, has been battling with the commission since 2016, hoping for the courts to rule that fracking activities do not fall under the DRBC’s purview. That case is expected to go to trial soon.

Baker, along with other PA Republicans, attempted to intervene in that case regarding the Wayne landowner’s drilling activities. The Middle District Court of Pennsylvania originally denied the legislators’ request, and while reconsidering that decision, the senators withdrew the request themselves.

The newer case, filed in the Eastern District Court of Pennsylvania, targets the moratorium from several different angles. For one, the plaintiffs argue that DRBC’s “compact is a quintessential legislative contract,” and that by imposing the moratorium, the commission has “attempted to exercise powers that the General Assembly did not—and, indeed, could not—transfer.”

The plaintiffs also cite the “Takings Clause” of the Fifth Amendment, which states that private property cannot be taken for public use without compensation.

“By foreclosing the only commercially viable method for natural gas extraction, the commission has deprived the Marcellus Shale gas of all economic use and, thus, effectively appropriated the property interest of individual landowners in those minerals,” the case filing reads. “The commission’s moratorium, therefore, constitutes a regulatory taking of private property.”

They also argue separately that the moratorium amounts to a regulatory taking of public land held by the state in trust.

Ironically, the case also invokes the Environmental Rights Amendment (ERA) to Pennsylvania’s constitution, something more commonly used by environmentalists to block natural gas development, not pave its path forward. Yet, the plaintiffs assert that since the ERA places the commonwealth’s natural resources “in trust... the Senate plaintiffs and Damascus Township may bring and defend actions that impact the trust, and take reasonable steps to increase the value of the trust’s assets.”

The Delaware Riverkeeper Network, a nonprofit activist group that opposes fracking and continues to call for a permanent ban, has condemned the lawsuit, and its use of the ERA.

“The plaintiffs are doing nothing to protect the environment, the economy, or the people of Pennsylvania with this specious attack,” said chief executive officer Maya van Rossum in a statement. “The use of the ERA to advance their cause is a clear misappropriation of constitutional language. In fact, by fronting for the industry and using the ERA as an excuse, they are betraying their oath of office.”

Other environmental organizations throughout the basin have also decried the effort, including Catskill Mountainkeeper, League of Women Voters of Delaware and the New Jersey Sierra Club. 

At press time, Baker’s office has not responded to a request for comment. The DRBC does not comment on ongoing litigation.

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